M v M

(a) The Mother shall provide 14 days written notice to the Father of any major long-term decisions she intends to make for the child;

(b) Thereafter, the Father shall have the opportunity to communicate his views about such major long-term decision in writing to the Mother within 14 days;

(c) Thereafter, the Mother shall promptly advise the Father in writing of the decision she has made.

In the event that the residence of the child is in Australia

1. X will spend time with the Father during gazetted NSW school terms no less than 12 nights each month having regard to the Father's four-weekly rotating roster, which the Father shall provide to the Mother as and when it becomes available to him, as follows:

(a) From 4 pm on the Monday of Week 2 to 4 pm on the Thursday of Week 2;

(b) From 4 pm on the Wednesday of Week 3 to 4 pm on the Monday of Week 4;

(c) From 4 pm on the Friday of Week 4 to 4 pm on the Tuesday of Week 1; and

(d) Any other time as agreed between the parties in writing.

(e) And for the purpose of this order, the following shall apply:

(i) Week 1 shall be taken to commence on Sunday 27 April 2025 and continue every fourth week thereafter;

(ii) Week 2 shall be taken to commence on Sunday 4 May 2025 and continue every fourth week thereafter;

(iii) Week 3 shall be taken to commence on Sunday 11 May 2025 and continue every fourth week thereafter; and

(iv) Week 4 shall be taken to commence on Sunday 18 May 2025 and continue every fourth week thereafter.

1. The child shall spend time with the Father during school holidays:

(a) For up to 14 nights a calendar year, as one block of 14 nights or as two blocks of 7 nights, subject to the following conditions:

(i) Such time shall be spent by the child with the Father during gazetted NSW school holiday periods.

(ii) Until the child commences Year 6, such time shall be limited to a maximum block period of up to 7 nights on each occasion.

(iii) The Father shall provide at least 30 days written notice to the Mother of his intention to exercise such school holiday time.

(iv) The child's school holiday spent with the Father shall specifically exclude the child's special occasion time due to be spent with his Mother as set out in Order 7.

1. The child spend time with the Father on the following special occasions, and subject to the Father's work roster:

(a) On the weekend of Father's Day from 3 pm on Saturday until 9 am or the start of school on Monday.

(b) On the child's birthday, if the child is not otherwise due to spend time with the Father on such date, from 3 pm or after school on the child's birthday until 9 am or the start of school the following day.

(c) On Christmas in odd-numbered years, from midday on Christmas Eve until midday on Christmas Day and in even-numbered years, from midday on Christmas Day until 3 pm on Boxing Day.

1. The child's time with the Father shall be suspended on the following special occasions:

(a) On the weekend of Mother's Day from 3 pm on Saturday until 9 am or the start of school on Monday.

(b) On the child's birthday, if the child is not otherwise due to spend time with the Mother on such date, from 3 pm or after school on the child's birthday until 9 am or the start of school the following day.

(c) On Christmas in even-numbered years, from midday on Christmas Eve until midday on Christmas Day and in odd-numbered years, from midday on Christmas Day until 3 pm on Boxing Day.

(d) For the weekend of the Mother's wedding, from 3 pm or after school on Friday until 9 am or the start of school on the immediately following Monday.

(e) For the religious holiday from 3 pm on its eve to 3 pm on the day that falls three days later.

(f) For up to 14 additional nights a calendar year, as one block of 14 nights or as two blocks of 7 nights, subject to the following conditions:

(i) Such time shall be spent by the child with the Mother during gazetted NSW school holiday periods.

(ii) The Mother shall provide at least 30 days' written Notice to the Father of her intention to exercise such school holiday time.

(iii) The child's school holiday time spent with the Mother shall specifically exclude the child's special occasion time due to be spent with his Father as set out above.

1. Changeovers for the child's time pursuant to Orders 4 to 7 herein shall be facilitated as follows:

(a) Where such time commences on a school day, by the collecting parent or their nominee collecting the child from school at the start of time.

(b) Where such time concludes on a school day, by the returning parent or their nominee delivering the child to school at the conclusion of time.

(c) Where such time commences or concludes on a non-school day, by the returning parent or their nominee delivering the child to the collecting parent or their nominee, at the agreed halfway point between each of the parents' residences at the changeover time.

(d) As otherwise agreed between the parties in writing.

In the event that the residence of the child is in Country C

1. The child spend time with the Father as follows:

(a) During the semester holidays in City B, Country C (which fall between December and January each year) in odd-numbered years, from midday on Christmas Eve until 4 pm on the day that falls two clear days before pupils are due to return to school for the 2nd academic semester, and in even-numbered years, from midday on Christmas Day until 4 pm on the day that falls two clear days before pupils are due to return to school for the 2nd academic semester.

(b) During the religious school holidays in City B, Country C (which fall between mid-March and mid-April each year), from 10 am on the first day of the school holiday period, until 4 pm on the day that falls at the mid-point of the school holiday period.

(c) During the end of school year holidays in City B, Country C (which fall between mid-June and mid-July each year), from 10 am on the first day of the school holiday period, until 4 pm on the day that falls two clear days before the child is due to resume school for the new school year.

(d) Any other time or place as agreed between the parties in writing.

1. The child's school holiday time spent with the Father shall be subject to the following conditions:

(a) The Father shall provide 28 days written notice to the Mother of his intention to exercise school holiday time with the child including: a copy of the child's travel itinerary and airline tickets (if any), details of the child's proposed accommodation and the location where such time will be exercised, details of any third parties who will be travelling with the Father and the child.

(b) if the Father re quires the child to travel to Australia or another destination during his school holiday time spent with the Father, the Father shall be responsible for payment of the child's airfares and for the airfares of an adult known to the child, in the event the child is not permitted to travel as an unaccompanied minor.

1. The child spend time with the Father during each school term:

(a) for up to two block periods of 7 nights each school term.

(b) any other time as agreed between the parties in writing.

1. The child's time spent with the Father during school terms shall be subject to the following conditions:

(a) The Father shall provide 28 days written notice to the Mother of his intention to travel to Country C to spend school term time with the child, with such notice to include a copy of the Father's travel itinerary and airline tickets, details of his accommodation and details of any third parties who will be travelling with the Father.

(b) The Father shall ensure the child's school attendance on all days that he is required to attend school.

1. If the Mother chooses to depart Australia and intends to resume the child's residence in Country C, she shall provide at least 90 days written notice to the Father of her intention to resume the child's residence in Country C including: the address of the child's proposed residence in Country C, the names and dates of birth of all persons who shall be living in the child's household and the name, address, phone number and email address of the child's proposed school.
2. If the Mother is required to permanently depart Australia due to the cancellation of her Australian visa and intends to resume the child's residence in Country C, she shall immediately notify the Father of the change in her visa status and promptly provide him with:

(a) Copies of all correspondence she receives from the Department of Home Affairs in respect to the cancellation or non-renewal of her Australian visa, as well as copies of any applications she makes for the stay of such visa cancellation or for another kind of visa.

(b) Copies of the child's proposed itinerary including proposed departing flight details.

(c) The address of the child's proposed residence in Country C.

(d) The names and dates of birth of all persons who shall be living in the child's Country C household.

(e) The name, address, phone number and email address of the child's proposed school.

1. Each of the parents shall enjoy flexible and liberal communication with the child and they shall facilitate the child's FaceTime communication with the other parent between 6.30 pm and 7 pm each day that the child is not otherwise due to see his other parent, having regard to the child's educational and extracurricular activities.
2. The name of the child X born 2019 be removed from the Family Law Watchlist and be permitted to travel outside the Commonwealth of Australia.
3. Each of the parents shall be at liberty to remove the child X born 2019 from the Commonwealth of Australia and the consent of the other parent is not required for such international travel, provided that such travel falls during periods of time that the child is due to be in the care of the travelling parent, pursuant to these Orders.
4. Pursuant to section 11 of the Australian Passports Act 2005 (Cth), the Mother shall be at liberty to apply for and renew a Commonwealth of Australia passport for the child X born 2019, and the consent of the Father is not required for such passport applications or renewals.
5. The Mother shall be at liberty to apply for and renew a Country C passport for the child X born 2019 and the consent of the Father is not required for such passport applications or renewals.
6. When not otherwise required for the child's travel with the Father, the child's passports shall be held by the Mother, and in the event the Father proposes to travel internationally with the child, the Mother shall promptly provide the child's Commonwealth of Australia passport to the Father or to the child's accompanying responsible adult upon receipt of a written request from the Father, with such requests not to be made any earlier than 28 days before the proposed departure date for the child's international travel, and the Father shall arrange for the return the child's passport to the Mother at the first changeover following the child's return to the care of the Mother after his international travel.
7. Each of the parents are authorised by these Orders to obtain directly from any medical, dental or allied health practitioner upon whom the child attends, information about the child's health. including diagnoses and treatment, and any costs in obtaining information shall be at the expense of the requesting parent, and each of the parents shall promptly advise the other parent as to the names and contact details of any practitioners upon whom the child attends or to whom they are referred.
8. Each of the parents is authorised by these Orders to obtain directly from any school or other education provider attended by the child, information about the child's educational progress, care, welfare and development, including but not limited to copies of school reports, Learning Support Plans, Individual Education Plans and school photograph application forms, and any costs in obtaining information shall be at the expense of the requesting parent.
9. Each of the parents is authorised by these Orders to attend any school functions, activities or events to which parents or members of the public are ordinarily invited.
10. Each of the parents is at liberty to attend any sporting or other extracurricular activities in which the child is enrolled, including regular activities and special functions, that fall on days that the child is in the care of the other parent.
11. Each of the parents shall notify the other parent as soon as reasonably practicable in the event of any of the following happening:

(a) The child being involved in an accident, illness or other adverse event requiring the attendance of Police or an Ambulance service.

(b) The child requiring triage at an emergency department.

(c) The child being prescribed medication that is required to be consumed during a period that the child is due to be in the other parent's care.

(d) The child being diagnosed with a serious medical condition requiring his referral to a medical specialist or his admission to hospital.

(e) The parent being charged with a criminal offence that would impact their ability to freely travel between Australia and Country C.

(f) Any changes to their mobile phone number, email address and/or residential address, within 24 hours of such change taking effect.

1. The Mother shall ensure that the Father is promptly provided with full copies of any Australia visa that she may hold from time to time and with full copies of any Applications she lodges with the Department of Home Affairs for a new Australian Visa or for the renewal or extension of an existing Australian Visa.
2. The parties are each restrained by injunction from denigrating the other parent, parent's partner or member of X's family to or in the presence or hearing of X.
3. The parties are each restrained by injunction from discussing these proceedings with or in the presence of X or showing X any document connected with these proceedings.
4. All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are parenting proceedings in relation to the child of the parties, X aged five.
2. The parties agree X will live with the mother and spend time with the father in accordance with his work roster during school terms, as he does at present. The parties have agreed to time arrangements without requiring orders. There is a dispute about holiday time.
3. The mother wishes to remain in Australia. If she cannot obtain a visa to permit that, the father seeks X live with him. The mother seeks X remain living with her, and travel with her.
4. As I will explain in these reasons, I have found that X will continue to live with his mother, regardless of where she may be living.

1. The father was born in Australia and the mother in Country C. They met in Country D in early 2017. They exchanged social media details and maintained contact.
2. Both parties travelled to spend time with the other. The mother obtained a visitor visa to come to Australia, which required her to return to Country C every three months to extend her visa. The mother applied for a spouse visa in Australia in 2018. The father supported the application.
3. The parties married in Australia in early 2019. In 2019, X was born.
4. On 20 August 2020, the parties separated. The mother and X returned to Country C by agreement. The mother's father was unwell at that time. The father cancelled his support for the mother's spouse visa application to the Department of Home Affairs. He did not tell the mother he was doing so. Ultimately the visa application was rejected in 2023.
5. The father spent time with X on five occasions in Country C by agreement between 2020 and 2024. He sought exemptions to do so during the COVID-19 pandemic. He had electronic communication with X most days, facilitated by the mother. In early 2024, the mother and X returned to Australia for X to have surgery. X is now five years old. He started school this year near where his mother lives in Region E of NSW.
6. The father commenced parenting proceedings on 29 May 2024, and X was placed on the Family Law Watchlist. The father has continued to spend time with X in accordance with his roster.
7. In mid-2024, the mother was arrested for several counts of obtaining a financial advantage by deception for the sale of fake items. She entered guilty pleas and was given a Community Corrections Order to be of good behaviour.

1. The father and Independent Children's Lawyer ("ICL") relied on the documents set out in the Case Outline Documents.
2. The mother relied on her affidavit filed 14 April 2025.
3. The parties were cross-examined, as were Ms G, Ms H, and Dr K. Mr L commenced giving evidence via videoconference. He declined to remain in a quiet, private place for cross-examination, and boarded a public bus. Cross-examination ceased. Counsel for the father withdrew Mr L's affidavit.
4. A number of documents were tendered during the course of the proceedings. I have had regard to that material, as well as the documents relied upon by the parties.

1. The father seeks orders for joint decision-making for all long-term decisions relating to X.
2. The father seeks orders based on the mother residing within Region E or the City F region of NSW. He seeks that X live with the mother and that the mother be restrained from removing X from Australia. He seeks time with X no less than 12 nights each month having regard to his four-weekly rotating work roster. He also seeks liberty to nominate one period per year of up to 14 nights in total to have X in his care.
3. Should the mother relocate outside of Region E, the City F area or Australia, the father seeks that X live with him and spend time with the mother in Australia during school holidays, as well as any other times the mother travels to Australia provided that notice is given.
4. The ICL proposes that the mother have sole decision-making responsibility on the basis that she provides written notice to the father of any major long-term decision she seeks to make and the father has an opportunity to communicate his views about the decision.
5. The ICL seeks orders that X live with the mother. Should X live with the mother in Country C, the ICL seeks orders he spend time with the father during school holidays and for up to two block periods of seven nights each school term. Should X remain living with the mother in Australia, the ICL proposes time with the father, in accordance with his roster. The ICL also proposes time on 14 additional nights per calendar year to be spent during the school holidays, and time on special occasions.
6. The mother withdrew her proposed Minute of orders and consented to the ICL's proposed orders.

1. Part VII of the Family Law Act 1975 (Cth) deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child's best interest. It is not an exhaustive list.[1]
2. In considering what orders would promote the safety of the child, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68 and Isles & Nelissen (2022) FLC 94-042 are relevant to any assessment of risk to the child. In a matter where there are allegations of risk such as in this instance, the analysis requires consideration of past conduct to assess whether there is a risk to the child, and the magnitude of that risk. The assessment of risk is an "evidence-based conclusion" (Isles & Nelissen (2022) FLC 94-042 at [85]). The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions.
3. I will have regard to relevant matters set out under s 60CC of the Act as they arise in these reasons.
4. The parties are in dispute about decision-making authority for the children. In determining whether to make an order under s 61D(3) of the Act, the court must consider the best interests of the children and apply the matters set out in s 60CC. That issue will be dealt with in these reasons.

1. There is agreement that whilst she lives in Australia, with some geographical constraint to areas near City F, X lives with his mother. There is agreement that time arrangements during school terms will be in accordance with the father's roster. This is essentially what has been occurring since X and the mother returned to Australia.
2. There is a dispute as to the detail of school holiday arrangements.
3. There is an issue whether X should be able to travel with his mother to Country C, whether to live or for a holiday. Country C is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction. There is no evidence of any system in Country C that would allow registration of an Australia order, nor enforcement.
4. The issues in this matter are:

(a) What risks, if any, exist for X in the care of either of his parents?

(b) What is the capacity of each parent to meet X's needs?

(c) What living arrangements would be in X's best interests if his mother returns to Country C?

(d) Should there be joint or sole decision making between the parents?

What risks, if any, exist for X in the care of either of his parents?

1. X has been able to develop a relationship with each of his parents whilst living in Country C. His relationship with his father has been enhanced through regular time since he has been in Australia. He has always lived primarily in the care of his mother. The father does not seek to disturb that situation unless the mother relocates outside of the Region E/City F area, which includes returning to Country C. If any of these occur, he seeks that X immediately move to live with him.
2. The mother came to Australia with X so that he could have an operation at M Hospital in mid-2024. It was identified when he was born that he had a medical condition, and both parties were aware he would require surgery once he was older. The mother met the costs of the return travel to Australia for herself and X, accommodation, and other ancillary costs. The procedure was covered by Medicare.
3. The mother's expectation was that she would remain with X in Australia whilst he recuperated from surgery, and the father could spend time with him. Her plan was to return to Country C thereafter, and she obtained a three-month visitors visa. The father does not dispute that was what was intended to happen.
4. The father made an application to place X on the Family Law Watchlist without advising the mother, shortly before she was due to leave with X. She was unaware the order was made. The mother was on a visa that was to expire soon after her travel date.
5. The father spoke to the mother hours before the flight was due to leave. He did not tell her about the order. The mother travelled with X from City F to Sydney to get the flight. There was a risk that X would be separated from his mother at the airport if Border Security or NSW Police had determined to do so. This would likely have been a highly charged, dramatic situation for X, and both he and his mother would have been very upset. His mother did not know what would happen next. The father gave no thought to the emotional impact on X. He had turned his mind to the problem to the extent he travelled to the airport in Sydney to take X into his care if required. Notwithstanding that, he had not considered the emotional and psychological toll on X. Had he advised the mother when he spoke to her that day, she could have elected not to travel to Sydney to attempt to board the flight and avoided the potential difficulty for X.
6. The father did not consider how his actions may impact the parents' capacity to reach future agreements for X. Unsurprisingly the mother has lost trust in the father and was upset by his conduct. He knew she was here for the operation and had a short-term visa.
7. The mother is currently on a Bridging Visa A. She does not have any guarantee if she departs Australia that she can return. She intends to apply for a visa based on her relationship with her now partner Mr N. There is no certainty whether the mother will obtain that visa.
8. The mother was charged with offences relating to selling fake items and pleaded guilty. The father was contacted by NSW Police, and he advised where the mother would be at a changeover. NSW Police attended and arrested the mother. Fortunately, X had been removed by the father prior to that occurring. I accept the father did not cause the mother to be arrested. That came about because of her conduct.
9. The father retained X after the mother's arrest, as he wanted to have a parenting plan put in place before he returned X. This conduct was coercive of the mother by forcing her to agree to an arrangement to have X returned to her care.
10. One of the father's witnesses, Ms G, gave evidence she had a dispute with the mother over a business venture in Country D. Ms G and her mother gave $46,000 to the mother to invest in the business between August and November 2023. She understood that they were going halves in renting a dwelling which they would sublet to others at a profit. She understood she would make $3,000 per month from bookings of the dwelling, after the first year.
11. In early 2024 Ms Cayless was advised through friends that the mother was involved in various scams, including real estate rentals. She sought return of the money, and received $9,179 after threatening to tell her then boyfriend and involve the police. She has since reported the matter to the Country D Police, Australian Federal Police and Western Australian Police. She has contacted a broadcasting network.
12. I accept the submission of counsel for the father that I do not need to make a finding about whether there was a scam operated by the mother with respect to real estate in Country D. The importance of the allegations is Ms G's evidence that other victims of the alleged scam approached her. They suggested to her they would take matters into their own hands to get their money. Some of those people followed the mother, and advised Ms G they had sent photographs outside X's school to the mother. Some referred to hiring someone to go to her home at night to 'recover' the money.
13. The account published by the broadcasting network in 2024 suggests reports have been made to the Australian Federal Police, Country D Police, and the Australian consulate. It is not clear whether there is a current police investigation in Country D. There is no evidence that the mother will be arrested on return to Country D. Were that to happen there would be issues for X's safety.
14. I have no direct evidence of third parties being prepared to engage in criminal acts, such as threats to X. The mother rejects that there is a risk. I accept it is highly speculative what other people may do. The mother has previously lived with her parents in City O, and they spend time together monthly. If there were issues in Country D she has a safe place to go within Country C that X knows, which reunites him with his grandparents.
15. There is insufficient evidence before me to properly assess any risk to X arising from the activities of his mother in Country D. The risk of the mother being arrested or charged is difficult to assess because of the state of the evidence. I accept counsel for the father's submission that if the mother were arrested on return to Country D it would be psychologically and emotionally damaging for X.
16. In terms of balancing risks to X I accept that if his mother were required to leave Australia and could not take X, it would cause him emotional and psychological harm. The report writer noted that would be a significant loss for X. She opined he would require a high level of attention and support, reassurance and comfort, to adjust to such a loss. The father has not demonstrated the emotional insight into X's needs that would give any confidence he could navigate that for X. I accept from his evidence he has not considered the loss and grief X would experience if he did not live with his mother.
17. There is no certainty there is a criminal investigation into the mother in Country D. There is no evidence she will be arrested on return to Country C. Given the state of the evidence, I must find that is merely a possibility. I accept it is a certainty that X would suffer loss and grief were he not in his mother's care if she is required to return to Country C without him. On balance I accept the greater risk for X is if he does not live with his mother, whether in Australia or Country C.
18. The mother's application is not framed as an application to relocate with X to Country C. The case law makes clear that relocations cases are not a separate category of parenting cases. Like all parenting cases the overarching consideration is the best interests of the child. It is on this basis that I determine that X should live with his mother regardless of where she resides.
19. I accept that the evidence supports a finding that the mother supports X's relationship with his father. She has previously assisted X to have a good relationship with his father from living in Country C. If necessary, I am confident she can achieve that again.
20. The ICL makes submissions that the father has engaged in family violence through coercive and controlling behaviour towards the mother. The mother reported no family violence concerns to the report writer. The father conceded yelling and swearing during arguments. The father has been criticised for involving NSW Police in two welfare checks on X. There is merit to the criticism that this was a heavy-handed approach, likely to frighten the mother and child. I accept on one occasion he notified the mother in advance of what he was doing, and his reasons for doing so, which militates against that. I accept retaining X until a parenting arrangement was agreed was coercive behaviour by the father. That fact alone is not sufficient to ground a finding that the father has engaged in family violence.
21. The father has reacted to concerns about X's care without being sensitive to the emotional impact on the mother or X. That of itself does not amount to a pattern of behaviour to isolate the mother from supports and control her behaviour.

What is the capacity of each parent to meet X's needs?

1. The mother has met X's needs throughout his life. He has always lived primarily with her. She ensured X travelled from Country D to City F to have a necessary operation in 2024.
2. Both parents have participated in ensuring X has a close relationship with his father. They have done this through daily FaceTime communication, and five visits by the father to Country C between 2020 and 2024. I accept that both parents have dedicated time and energy into maintaining X's relationship with his father because they regard it as important for X.
3. The mother's partner has primary school aged children living in Sydney, who spend regular time with him. He provides the mother with support.
4. X shares a close and loving relationship with his maternal grandparents. He lived with them for nine months when he first travelled to Country C at 11 months. They alternate travel with the mother to spend time with their daughter and grandson between Country D and City O. This is an important relationship for X, and assists connect him to his Country C culture.
5. On the father's application there will be a disruption to this relationship should the mother leave Australia. X would reside with him, and all time occur in Australia. The father, I accept, had not considered the impact on X of the loss of those relationships. The maternal grandparents do not speak English. The father had not contemplated how those relationships could be maintained. He speaks no Country C language.
6. The father referred to two former friends of the mother who are Country C, and that they could assist X maintain a connection to his Country C culture, language and the religion. He had no real plan for how that would happen. I do not accept that this would be sufficient to maintain those important cultural and religious connections for X.
7. The father alleges that X told him a friend of the mother, with whom they stayed for 2 months in 2024, took photographs of X in the shower. The mother was unsure about the truthfulness of the account from the father, but nonetheless acted protectively of X. An investigation by the Joint Child Protection Response Team did not take the matter further.
8. The mother sought child support from the father. Since being in Australia, she is without an income and relies on child support payments to meet expenses. The father is assessed to pay $231 per week. He acknowledged he actually pays $185 per week. In early 2025, his wages were garnished to meet child support arrears. The father's evidence is that he prioritised paying his mortgage over meeting those responsibilities. He did not regard it as problematic for his son that the mother is required to meet costs for X. There is a concern that the father does not have the capacity to adequately prioritise X's needs over his own.

What living arrangements would be in X's best interests if his mother returns to Country C?

1. The mother hopes to obtain a visa to permit her to remain living in Australia, and visit Country C. She is in a committed relationship and would like to remain living here. Whether that happens is to a large extent outside her control.
2. The mother has reliably facilitated daily electronic communication for X to maintain his relationship with his father when they lived in Country C. There was a brief period when the mother did not facilitate that communication immediately after she became aware the father had cancelled sponsorship of her visa. Other than that X had daily, sometimes twice daily, FaceTime communication with his father.
3. The evidence supports that X is developing a good relationship with the mother's partner. There is no issue raised about his role in X's life.
4. When the father advised he was travelling to Country D, the mother made X available. On one occasion he stayed in her home. Five trips across four years demonstrates a significant commitment by both parents to maintaining X's relationship with his father. Since travelling to Australia, the mother has entered into arrangements for substantial time for X with his father. I accept from her evidence that her commitment to fostering their relationship has continued, notwithstanding her loss of trust in the father over the course of these proceedings.
5. Currently the father stays in accommodation close to the place where he works for some shifts, so that he does not risk driving exhausted. His affidavit did not refer to how he would manage X's care if the mother left the country, and X was in his full-time care as he seeks. When these matters were put to him in cross-examination he raised long service leave entitlements, which he would utilise initially. Ultimately his proposal was he would return to work, possibly part-time.
6. The mother has made it clear that she regards time between X and his father as important. She was concerned that if time arrangements were put in place for an alternate weekend style arrangement, X would not have the benefit of regular time with his father because of his roster. She has promoted arrangements to work around the father's availability while she is in Australia. She has also facilitated X's relationship with the paternal grandmother.
7. The father's evidence does not suggest he has the same commitment to fostering X's relationship with his mother if X lives with him. He does not, for example, propose FaceTime calls occur daily as the mother has organised. The father did not appear to have contemplated how X may react to being separated from his mother, with whom he has always lived. It could be expected he would grieve the loss of a relationship with his mother. I am not satisfied that the father has the capacity to manage that for X.
8. By contrast the mother has given thought to how X would cope if she is living in Australia and can travel, and X is not permitted to leave. She gave evidence she would not go to Country C for visits if she could not take him. He would be very upset at not seeing his grandparents, and would miss her, which she thought would be too much for him. This is despite her wanting to be able to see her parents regularly.
9. The mother and X would have continued to reside in Country C, as previously agreed between the parties, had the mother not returned to Australia to attend to X's medical needs. She now hopes to continue to live here. The evidence does not support a finding of risk to X were he to return to Country C. The evidence demonstrates that time between the father and X will continue, supported by the mother, whether he lives in Australia or Country C. X would suffer psychological harm were he to spend extended periods apart from his mother, if she is lives outside of Australia.
10. The orders for the father are more precise in the drafting of orders for term time with respect to the father's work roster. Although the dates referred to in the orders are past, the dates are in reference to the roster. For these reasons, I prefer that drafting of the orders.
11. The holiday time proposed by the father is that either party can nominate two periods of 7 days, or one period of 14 days each year. The option of two periods of 7 days was confirmed by counsel for the father in submissions. The father seeks that time may occur during school holidays or school term. The mother and ICL seek the same orders but confined to school holiday periods. Otherwise, time will occur pursuant to his roster.
12. I accept that orders that provide for time during school holidays works better for X. It allows an opportunity for extended time with X to enjoy with each of his parents without the pressure of school routines. There is no evidence the father is precluded from taking leave during school holidays by his employment. The mother may be working and not be able to take leave each holiday period with X. This requires some sharing of that care responsibility between the parents.

Should there be joint or sole decision making between the parents?

1. The mother previously sought orders for equal shared parental responsibility. She has always made long-term decisions for X. I accept her decisions have been child focused and appropriate. This is the case with health decisions and schooling, for example. She has taken steps to ensure that X is bilingual in Country C and English so that he can readily communicate with his father. This also links him to his Australian and English heritage through his father and the paternal family. Her position changed during the hearing to align with the ICL's application for sole decision-making.
2. The mother kept the father advised of matters whilst they were in Country C to do with X's education, living arrangements and health. The father has had the capacity to contact childcare providers through information provided by the mother.
3. In my view there are a number of factors that mitigate against orders for the parties to share decision-making. Firstly, the father's conduct in withdrawing his support for a spouse visa, and placing X on the Watchlist, both without informing the mother. He could, for example, have let her know prior to going to the airport that the order was in place. She ran the risk of being detained without anyone to take care of X. She also ran the risk of losing the money on the flights for herself and X which she could not afford to do. The father works in a place where he is inaccessible when on shift if there is an emergency. His roster also makes it more difficult for the parents to discuss matters, particularly if the mother is in Country C.
4. The mother will have the ability to renew his Country C and Australian passports as required, which is part of the exercise of parental responsibility. There are orders that require provision of the passports to the father. should he travel overseas with X.
5. It is hoped that the mother may be able to remain in Australia on a visa that will permit travel to Country C so that she can maintain for X his connections to extended family and culture. The orders make provision for X to be able to continue his relationship with his father, regardless of the mother's immigration status in Australia.
6. I have made ancillary orders so that both parties have access to information about X's health and education, and participate in those matters. I note that after counsel for the father's submissions s 68B injunctions previously sought by the ICL were not pressed. There was broad agreement to orders being made using the form sought by the father about matters such as non-denigration.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle.

[1] Family Law Act s 60CC(2)(f).